Mealey's Elder Law

  • September 19, 2019

    Class Action Against Assisted Living Company Should Continue, Plaintiffs Say

    NASHVILLE, Tenn. — Class claims alleging that Brookdale Senior Living Inc. violates state consumer protection statutes by promising but failing to provide care based on residents’ assessed care needs should not be stricken and the complaint should not be dismissed, the plaintiffs say in a pair of Sept. 16 motions filed in a Tennessee federal court (Meghan Bright, et al. v. Brookdale Senior Living, Inc., No. 19-cv-374, M.D. Tenn.).

  • September 19, 2019

    Operators Of Bond Scheme Ordered To Pay $813,000 Disgorgement, Civil Penalties

    AUSTIN, Texas — A federal judge in Texas on Sept. 17 ordered the operators of a “death put” bond investment scheme to pay nearly $813,000 in disgorgement, prejudgment interest and civil penalties to the Securities and Exchange Commission after the SEC and the defendants agreed to settle all federal securities law claims brought in the action (Securities and Exchange Commission v. Jay Daniel Seinfeld, et al, No. 19-910, W.D. Texas).

  • September 19, 2019

    1st Circuit:  2013 Claim For 2006 Tax Refund By Son With Durable POA Was Untimely

    BOSTON — A son’s attempt to collect on behalf of his father’s estate a 2006 tax refund in 2013 was untimely as he had durable power of attorney (DPA) at the time the taxes were to be timely filed, a First Circuit U.S. Court of Appeals panel ruled Sept. 16, affirming a trial court’s dismissal of the estate’s complaint against the Internal Revenue Service for lack of subject matter jurisdiction (Hoff Stauffer v. Internal Revenue Service, No. 18-2105, 1st Cir., 2019 U.S. App. LEXIS 27827).

  • September 16, 2019

    Man Sentenced To 20 Years In Prison For $37M Health Care Fraud Scheme

    MIAMI — A federal judge in Florida on Sept. 12 sentenced a man to 20 years in prison for his role in a $37 million health care fraud scheme that began in 1998 and involved bribing physicians to have patients entered into a network of assisted living facilities and skilled nursing facilities that he owned (United States v. Philip Esformes, et al., No. 16cr20549, S.D. Fla.).

  • September 16, 2019

    Kansas High Court: Party Signed Transfer-On-Death Deed As Amanuensis

    TOPEKA, Kan. — A majority of the Kansas Supreme Court on Sept. 6 affirmed the validity of a transfer-on-death (TOD) deed that was signed by a benefiting party at the direction of the individual seeking to make the transfer because the evidence supports the conclusion that the benefiting party signed the deed as an amanuensis (In the matter of the estate of Roxie A. Moore, Harvey L. Moore v. Maureen E. Miles, et al., No. 115,628, Kan. Sup., 2019 Kan. LEXIS 321).

  • September 16, 2019

    Real Estate Services Company Asks Supreme Court To Hear Age Bias Appeal

    WASHINGTON, D.C. — In a case involving state law claims of age discrimination, the employer, Cushman & Wakefield Inc. (C&W), filed a petition for writ of certiorari on Sept. 5, asking the U.S. Supreme Court to decide if federal courts sitting in diversity should certify questions to state supreme courts where state courts “are silent or split on outcome-determinative questions that implicate subject-matter jurisdiction, core legal requirements” or both (Cushman & Wakefield, Inc. v. Yury Rinsky, No. 19-306, U.S. Sup.).

  • September 16, 2019

    Iowa Appellate Panel: Daughter Didn’t Breach Duties In Hiring Care For Mother

    DES MOINES, Iowa — A daughter who used untrained caregivers to take care of her mother in her mother’s home until her death did not violate Iowa law and the son who challenged the care after his mother died failed to show that the care his mother received was “subpar or deficient,” an Iowa appellate panel ruled Sept. 11 (In the Matter of the Guardianship and Conservatorship of Sylvia M. Olson, No. 19-0268, Iowa App., 2019 Iowa App. LEXIS 858).

  • September 13, 2019

    Daughter Can Allege Negligence Per Se Against Nursing Home, Judge Rules

    VALDOSTA, Ga. — Although a daughter suing a nursing home where her mother died cannot allege a private right of action against the facility under federal nursing home regulations, she can  pursue a claim for negligence per se under the rules, a federal judge in Georgia ruled Aug. 26, denying the facility’s motion for summary judgment (Ange Davis v. GGNSC Administrative Services LLC, No. 7:17-CV-107, M.D. Ga., Valdosta Div., 2019 U.S. Dist. LEXIS 144688).

  • September 13, 2019

    Former Railroad Worker: Retirement Board’s Decisions Should Be Judicially Reviewed

    WASHINGTON, D.C. — A former Union Pacific Railroad worker tells the U.S. Supreme Court in an Aug. 15 petition for writ of certiorari that it should review a Fifth Circuit U.S. Court of Appeals ruling that denied judicial review of a U.S. Railroad Retirement Board’s determination, arguing that the Railroad Unemployment Insurance Act (RUIA) and Railroad Retirement Act (RRA) allow for judicial review of the board’s decision (Manfredo Salinas v. U.S. Railroad Retirement Board, No. 19-199, U.S. Sup., 2019 U.S. S. Ct. Briefs LEXIS 3222).

  • September 12, 2019

    Massachusetts High Court Hears Arguments On Assisted Living Fees

    BOSTON — The Massachusetts Supreme Judicial Court on Sept. 9 heard oral arguments from both sides in a dispute over an assisted living facility’s collection of up-front fees from residents beyond those outlined in Massachusetts law on security deposits (James M. Ryan, et al. v. Mary Ann Morse Healthcare Corp., No. SJC-12708, Mass. Sup.).

  • September 12, 2019

    Nebraska Panel Finds No Undue Influence In Execution Of Later Will

    NORTH PLATTE, Neb. — A Nebraska appellate panel on Sept. 10 affirmed a lower court’s ruling that a deceased woman’s 2011 will was properly executed, rejecting the arguments of one of her sons, who claimed that the will was the product of undue influence and that an earlier will should be admitted to probate (In re Estate of Ruth E. Clason, No. A-18-380, Neb. App., 2019 Neb. App. LEXIS 272).

  • September 11, 2019

    11th Circuit: New Trial Needed In Suit Debating Terminal Illness Diagnoses

    ATLANTA — An 11th Circuit U.S. Court of Appeals panel on Sept. 9 vacated a federal judge in Alabama’s sua sponte decision to award summary judgment to a nursing facility accused of submitting claims to Medicare for the treatment of elderly patients who were falsely diagnosed as terminally ill, finding that a new trial should be held that considers all of the evidence the government has to support its claim for falsity under the False Claims Act (FCA) (United States v. AseraCare Inc., et al., No. 16-13004, 11th Cir., 2019 U.S. App. LEXIS 27074).

  • September 10, 2019

    West Virginia High Court Upholds Ruling On Probate Assets, Value Calculations

    CHARLESTON, W.Va. — A county commission was correct to find that jointly held accounts were probate assets, to order present day value calculations of the probate assets and to charge missing probate assets against a former executrix’s distribution, the West Virginia Supreme Court of Appeals said Sept. 9, affirming a trial court’s order upholding the commission’s order (Marsha A. Casdorph-McNeil v. Mark Casdorph, No. 18-0497, W.Va. Sup., 2019 W. Va. LEXIS 406).

  • September 10, 2019

    Kentucky High Court Reinstates Jury Verdict Finding Lack Of Capacity To Execute Will

    FRANKFORT, Ky. — A majority of the Kentucky Supreme Court on Aug. 29 reinstated a jury’s verdict finding that a now-deceased man lacked requisite testamentary capacity to execute a new estate plan and that his wife unduly influenced him; however, the majority upheld a reversal of a trial court’s finding that the wife misappropriated funds (Richard A. Getty, et al. v. Brenda Sue Bridges Getty, et al., No. 2018-SC-000111-DG, Ky. Sup., 2019 Ky. LEXIS 350).

  • September 09, 2019

    Nursing Homes Sue U.S. Health Department Over Use Of Arbitration Agreements

    FAYETTEVILLE, Ark. — Two nursing homes on Sept. 4 sued the U.S. Department of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS) and their respective secretary and administrator in an Arkansas federal court, alleging that they have been “trying to weaken arbitration in the context of longterm care facilities, such as nursing homes” despite statutory law and precedent (Northport Health Services of Arkansas LLC, et al. v. United States Department of Health and Human Services, et al., No. 19-5168, W.D. Ark.).

  • September 09, 2019

    Breach Of Contract, Bad Faith Claims Cannot Stand Against Long-Term Care Insurer

    RICHMOND, Va. — A Virginia federal judge on Aug. 29 dismissed breach of contract and bad faith claims alleged against a long-term care insurer after determining that the insurer did not breach any of the provision of its policies because it did not fail to disclose information about premium increases (Jerome Skochin, et al. v. Genworth Life Insurance Co., No. 19-49, E.D. Va., 2019 U.S. Dist. LEXIS 148636).

  • September 06, 2019

    Catholic School Asks Supreme Court To Rule On Ministerial Exception

    WASHINGTON, D.C. — A Catholic school on Aug. 28 petitioned the U.S. Supreme Court, seeking review of a decision by the Ninth Circuit U.S. Court of Appeals reversing a trial court’s application of the First Amendment’s “ministerial exception” to a teacher’s age discrimination lawsuit (Our Lady of Guadalupe School v. Agnes Morrissey-Berru, No. 19-267, U.S. Sup.).

  • September 05, 2019

    Judge Poses 5 Questions To Parties Following Trial Over Medicare Coverage

    HARTFORD, Conn. — Following a six-day bench trial, a federal judge in Connecticut on Aug. 23 requested briefing from a class of Medicare beneficiaries and the secretary of Health and Human Services in a case in which the beneficiaries claim that they suffered financial injuries as a result of being designated for observation status rather than inpatient status while hospitalized (Christina Alexander, et al. v. Alexander M. Azar II, No. 11-cv-1703, D. Conn.).

  • September 04, 2019

    Virginia Supreme Court Reverses $1.75M Judgment Against Nursing Home

    RICHMOND, Va. — A trial court erred in finding that a nursing assistant committed molestation and rape within the scope of his employment and in removing that issue from a jury, the majority of the Virginia Supreme Court ruled Aug. 30, reversing a $1.75 million final judgment based on the jury’s verdict against a nursing home that it was vicariously liable for the nursing assistant’s actions and remanding for a retrial (Our Lady of Peace Inc. v. Barbara Morgan, et al., No. 180736, Va. Sup., 2019 Va. LEXIS 105).

  • August 30, 2019

    Predeceased Spouse’s Siblings Are Not Entitled To Estate Under Intestate Succession Statute

    SAN FRANCISCO — In a dispute over inheritance rights between a decedent’s statutory heirs and siblings of the decedent’s predeceased spouse, a California appeals panel on Aug. 27 upheld a lower court’s judgment rejecting the siblings’ claims to the estate based upon California Probate Code Section 6402.5, which governs intestate succession, and ordered that the estate is to be distributed to the decedent’s heirs (Aleja Ochoa, et al. v. Blanca Estela Elisea Valencia, et al., No. A150018, Calif. App., 1st Dist., Div. 2, 2019 Cal. App. Unpub. LEXIS 5689).